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Determining if a duty of care exists in a situation

This essay aims at critically analysing some circumstances that the courts are likely to take into account when determining if a duty of care exists in a situation where by a victim brings a claim of negligence against the emergency services. This is due to the fact that these key publicly funded bodies, ought to ensure public safety and security and to come to rescue whenever there are any emergency situations.

However negligence claims against the police and the other emergency services such as the ambulance services, the fire services and the coastguards which concerns their exercise of powers or on the other hand failure to exercise these powers, have been dismissed by the courts in many occasions on the grounds that no duty of care is owed to the victims. The courts usually develop many reasons as to why they deny these individual victims claims of negligence against these public bodies some of which include the lack of proximity especially in a scenario where by the plaintiff is just one general member of the public affected, with no connection with the authority in question as was in the Hill’s [1] case. Additionally, problems of justiciability whereby the alleged negligent act or omission involved an exercise of discreation by the public authority, in which the courts will find it very difficult to impose liability on the alleged public authority if a claim is brought against it [2] and a range of policy concerns about the effects of imposing liability on these publicly funded emergency services.

The courts adopt these defensive practices against the police and the other emergency services due to the fear of future reactions by these bodies on how they approach different emergency situations. For instance they may be required to be excessively cautious when dealing with different situations leading to wastage of time and recourses. Consequently, in M v Commissioner of Police for the Metropolis [3] the court held that, imposition of a negligence liability on the public bodies may result in time and energy being diverted to unproductive or unnecessary defensive measures thus delaying necessary interventions and reducing the time available for other cases [4] . In Hill, the House of Lords held that no duty of care should be imposed on the police in the exercise of their investigation functions. One of the policy concerns in this case was that imposition of a duty might put the police in a ‘’detrimentally defensive frame of the mind’’ [5] . Another influential factor has been the anxiety by the judiciary that the imposition of duties of positive action may lead to a large number of claims that might lead to the extortion of the limited budgets funds or might have an adverse effect on the provincial of beneficial public services [6] .

Usually, there is no public health care service that can operate effectively without an ambulance provision, and looking at before, it seemed that there was no any common law duty to attend to a victim and provide pre- hospital emergency care when called upon. However, in Kent v Griffith [7] , the court held that any reasonable delay by an ambulance service can lead to an actionable negligence claim, and because nowadays ambulances have at least one trained doctor on board this has become an essential part of emergency clinical care with the responsibility to ensure that useful treatment is provided to individual patients immediately [8] . The reason behind this is that, the mere presence of a patient in emergency ambulance creates that doctor- patient relationship therefore the patient in question is entitled to a reasonably careful treatment. Grubb [9] observed that the decision in Kent by the courts might be seen by many as redirecting useful financial resources from the care and treatment of patients to compensation claims.

On the issue regarding the fire services, their position was defined in Capital& Counties Plc v Hampshire CC [10] . In this case it was held that the fire services are not under a common law duty to answer calls for help and that they are not under a duty of care if they fail to do so. Additionally if they fail to turn up or they do not turn up on time in a scenario whereby they carelessly understood a message from a victim or got lost in the way or may be run into a tree they are not liable. However the fire services are under a duty not to increase harm once attending to a fire. This position was also confirmed in Church of Jesus Christ of Latter Day Saint v W. Yorkshire Fire and Civil Defence [11] .

Moreover, like the fire brigade, the coastguards are not liable in a scenario whereby it fails to respond to emergency call, or it responds incompetently provided no more damages results from the situation than if it had done nothing at all. This position was affirmed in OLL Ltd v Sec of State for Transport [12]

Academics [13] still argue that the defensive practises adopted by the courts in protecting the police ought to be reversed. This is because, there are too many versions of police functions and too many different contexts in which allegations of negligence by the police could be raised by different victims for there to be a blanket rule giving immunity to this publicly funded emergency service. Additionally the defensive practise argument should never be used alone to justify police immunity in an individual case and on the issue of policy considerations on how the police carry out their different functions, need to be assessed on the basis of an individual case and in accordance with Osman’s rulings on proportionality. Based on this argument therefore, the Hill principle should no longer be treated as applying to virtually all police conducts associated with the investigation and suppression of crime.

It is worth noting therefore if there can be any evidence showing an existence of a special pre- tort relationship between the victim in question and the police, and that there is an evidence of an assumption of responsibility on the part of the police towards the victim which might be inform of personal dealings between the two parties, and an evidence which shows that the police had encouraged the victim to rely on their protection to his detriment, a duty of care in such a scenario might be found on the part of the police. Hence the court in Swinney [14] found an existence of a duty of care where the police led the claimant informant to believe that they would keep her identity protected. Furthermore, cases such as Orange v Chief Constable of Yorkshire Police [15] and Reeves v commissioner of police of the Metropolis [16] provide that a pre- tort relationship will automatically give rise to a duty to protect a foreseeable harm by the police in a scenario whereby there is a bad relationship between a custodian and a detainee and the duty might even extend to protection against the risk of self harm if the detainee’s risks of self harming tendencies are known by the custodian authorities. In this scenario the positive duty to the police is entirely compatible with their custodial functions and therefore there is no obvious policy argument if the police in question fail to take care of the detainee. In such circumstances negligent liability might be imposed on the police.

Moreover, Hill was not an authority that there was immunity for liability in negligence for police officers in all circumstances but rather where there is a criminal in question who demonstrates to commit crimes against a particular group of people [17] . Therefore the labelling of police duty as being concerned with the investigation and the suppression of crime according to Hill is too wide and imprecise.

Lord Bingham in his dissenting speech in Smith (FC) v Chief Constable of Sussex Police [18] on what he termed as a liability principle provided that if a victim furnishes a police officer with true evidence that a third party whose identity and all his whereabouts are known, presents a specific threat to the victim’s life or to his safety, then in that scenario the police officer owes the victim in question a duty of care, and that the police officer ought to take reasonable steps to assess the roots of such threats and if possible take all the necessary procedures to prevent the threats from being carried out.

Furthermore there is an existence of another route of finding police liable for their negligent actions, and this is under the Human Right Act [19] which came into force in October 2000. This Act is conceived as a mechanism of giving further effects to individual human rights and freedoms and allowing the enforcements of ECHR rights in the domestic courts. It is worth noting that Section 6(1) of the Human Rights Act imposes a duty on the public authorities to act compatibly with the European Convection of Human Rights. The police being a key public authority body are bound by this section. Consequently under Section 7 of the same Act, an individual whose protected rights are contravened by any public authority is entitled to initiate proceedings against the public authority in question. Section 8 of the same Act further provides a remedy inform of damages to individual victims. There are a number of cases which have sought to use the HRA in order to find the police liable for their actions. A classic example is the Van Colle case in which the police were found guilty of contravening Article 2 of the ECHR which protects the right to life of an individual. In that regard they were found to be in breach of Section 6(1) of HRA and hence sued under Section 7 of the same Act. It was held that the police in the facts of the case were under a duty to take preventative measures to protect an individual whose life was at risk from criminal acts of another.

In Osman v UK, the court held that, the relevant authorities in the facts of the case knew or ought to have known that at the time of real and immediate risk to the life of the victim of the case from the criminal acts of a third party, triggered a duty which gave rise to an obligation on their side to take reasonable measures within the scope of their power to avoid the risk. But it is worth noting at this point that this is only applicable in exceptional circumstances in which the police have actual knowledge of some threats to a specific individual victim from a well known harm doer and not in any other circumstance as was held in the Dorset Yatch case. However due to the difficulties involved in policing and the unpredictability of the human conducts and choices which have to be made in terms of the choice of resources and priorities, an obligation to take care of individuals by the police should be in such a way that it does not impose an impossible burden to this them.

In conclusion therefore, it is true argue that tort liability creates a serious risk of defensive behaviours by the police, and other emergency services and that in some circumstances it is better to deny claims of liability by individual victims against them than to risk some grave social consequences as a result of the defensive measures of any of the emergency services in question. On the other hand parliament should intervene if this area of law has some disastrous consequences on individual victims [20]

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